Stephen Bainbridge's Journal of Law, Religion, Politics, and Culture

Current Affairs

03/06/2019

Mounting evidence suggests that disruptions to our body’s biological clock are harmful, and growing recognition of this fact by scientists has fueled efforts in other states and even the European Union to take action. But ceasing the biannual disruptions alone is not enough.Here in California, where the sun rises over San Diego nearly an hour earlier than it does at the Oregon border, choosing permanent Daylight Saving Time could create real health and safety issues for the northern part of the state.In a state nearly 800 miles long, permanent Daylight Saving Time would have the sun rising over San Diego in late December at 7:47 am. In San Francisco, sunrise would occur around 8:20 a.m. And in Crescent City, in the far north,it would rise at 8:42 a.m.That means most children and many commuters across Southern California would pretty much always head out to school or work in daylight, while most everyone in communities from the Bay Area north would begin their work or school days during winter in darkness. ...

Permanent Standard Time is the only fair and viable option, not only for California, but the entire nation. California lawmakers, regardless of district, have a responsibility to residents in the northern part of the state. They also have an opportunity to make this important point to Congress, which might someday impose a permanent time change for the nation.

I don't really care which one we pick, but I would like to see us pick one and have done with this semi-annual stupidity.

The Delaware Chancery Court has long played an outsized role in shaping the destiny of some of the world’s largest businesses. Now, this Bloomberg story says that the court may be called upon to weigh-in on the fate of a nation – because it may have to determine who is Venezuela’s lawful president as part of a battle for control over Citgo. Here’s an excerpt:

The leadership crisis in Venezuela could lead to an odd legal situation in the U.S. — a Delaware judge may be asked to decide who is the legitimate president of the South American country.

The issue could arise in the U.S. because of the power struggle over Citgo Petroleum Corp., the Houston-based refiner owned by Venezuela oil giant Petroleos de Venezuela SA. Last week, Juan Guaido, the U.S.-backed head of Venezuela’s National Assembly, named new directors to Citgo and PDVSA, a critical part of his strategy to seize oil assets and oust the regime headed by autocrat Nicolas Maduro, who remains in control of the military and other key parts of the government.

Venezuela’s president is the controlling shareholder of PDVSA, and the article speculates that lawyers for the U.S.-backed Guaido may set up a Chancery Court contest centering on who is Venezuela’s president by trying to remove Maduro’s directors and replacing them with his slate.

As a lapsed football fan who has never owned a Nike product (not on purpose, it just worked out that way), I probably would not have paid much attention to this kerfuffle but for the fact that it implicates my two most recent scholarly projects.

In Book Review Essay: Conservatives Against Capitalism: From the Industrial Revolution to Globalization by Peter Kolozi, available at SSRN: https://ssrn.com/abstract=3206963, I point out that:

Although American conservatism in recent decades has been characterized by its rhetorical embrace of free market capitalism, Kolozi reminds us that it was not always so. To the contrary, there is a long tradition of skepticism about—and sometimes outright hostility to—capitalism among important strains of American conservative thought. ...

Kolozi’s concise and eminently readable text raises the intriguing possibility that the seemingly immutable conflation of conservatism and capitalism may have been a temporary aberration. Post-war conservatism in the United States was a somewhat rocky marriage of traditionalists, libertarians, and, somewhat later, neoconservatives. These conservative tribes were united mainly by a shared opposition to Communism. Given a seemingly binary and existential choice between what passed for capitalism in the post-war West and Soviet communism, American conservatives opted for the former. Yet, despite Frank S. Meyer’s famous fusionism project, which sought to create a new syncretic conservatism merging the various tribal traditions, the pre-existing fault lines persisted. With communism having been taken off the table as an existential threat, it may have been inevitable that those fault lines would rupture.

If it is possible that conservatives are going to abandon their long love affair with big business, it seems almost certain that big business is going to abandon conservatives (especially the brand of conservatives Hillary Clinton famously dismissed as deplorables).

I explore the reasons for that development in my article Corporate Purpose in a Populist Era, available at SSRN: https://ssrn.com/abstract=3237107. In it, I observe that both left- and right-wing populists historically have viewed corporate directors and managers as elites opposed to the best interests of the people. Today, however, right of center populists find themselves increasingly at odds with an emergent class of social justice warrior CEOs, whose views on a variety of critical issues are increasingly closer to those of blue state elites than those of red state populists.

To be sure, as Josh Barro perceptively argues, brands like Nike have profit maximizing reasons for aligning themselves with woke coastal millennials, who are at the core of the supposedly most desirable marketing demographic. But there is also something else going on here, which I explore at length in my article:

The values of the elites (the Oligarchs and Clerisy, as Kotkin calls them), on the one hand, and those of non-elites, on the other, have been diverging for several decades. In his 1995 classic The Revolt of the Elites, Christopher Lasch identified the emergent split between what he called the New Elites and the rest of society.[1]Lasch identified several trends that have accelerated in subsequent years. First, he argued, American elites had become increasingly global, rejecting nationalism and patriotism, and refusing to be tied to places or people.[2]Today we refer to those elites, as well as their global counterparts and those who aspire to join them,[3]as Davos Man:

January is when the World Economic Forum (WEF) holds its annual conference at a Swiss mountain resort to “improve the state of the world.” More than a business meeting for 2,500-plus globetrotting academics, executives, politicians, and lobbyists, it is a tribal celebration for leaders who worship a holy trinity of ideas: capitalism, globalization, and innovation. In a 2004 essay, Samuel Huntington, who popularized the term “Davos Man,” described this breed of humans as “view[ing] national boundaries as obstacles that thankfully are vanishing.” (And, yes, more than 80 percent of attendees at the WEF conference are male.)[4]

As The Economist’s Schumpeter columnist observed in 2013, “[o]rdinary folk trust Davos Man no more than they would a lobbyist for the Worldwide Federation of Weasels.”[5] This distrust took on considerable political weight in the 2016 Presidential campaign, as the populists who voted for Trump recognized that a minority comprised of “people from ‘anywhere’” ruled the majority of people who came from “somewhere.”[6]

The first group … holds “achieved” identities based on educational and professional success. Anywheres value social and geographical mobility. The second group is characterised [sic] by identities rooted in a place, and its members value family, authority and nationality.

Whereas Anywheres, whose portable identities are well-suited to the global economy, have largely benefited from cultural and economic openness in the West, he argues, the Somewheres have been left behind—economically, but mainly in terms of respect for the things they hold dear. The Anywheres look down on them, provoking a backlash.[7]

The disdain in which elites now hold non-elites was another critical emergent trend Lasch identified. As Christopher Lasch explained, “the new elites, the professional classes in particular, regard the masses with mingled scorn and apprehension.”[8]Many of Lasch’s new elites dismissed the masses’ values as “mindless patriotism, religious fundamentalism, racism, homophobia, and retrograde views of women.”[9]

Middle Americans, as they appear to the makers of educated opinion, are hopelessly shabby, unfashionable, and provincial, ill informed about changes in taste or intellectual trends, addicted to trashy novels of romance and adventure, and stupefied by prolonged exposure to television. They are at once absurd and vaguely menacing—not because they wish to overthrow the old order but precisely because their defense of it seems so deeply irrational [to the new elites] ….[10]

This tension was perhaps nowhere more pronounced than with respect to religion. When Lasch write over two decades ago, “[a] skeptical, iconoclastic state of mind is one of the distinguishing characteristics of the knowledge classes. ... The elites’ attitude to religion ranges from indifference to active hostility.”[11]

If anything, today’s elites have become even more hostile to religious values. As Samuel Gregg observes, the Davos Man’s moral creed is “a mélange of social liberalism, environmentalism, and a new order of a borderless world. Religion is … considered the refuge of fanatics and anyone stupid enough to be skeptical of gender ideology and techno-utopianism.”[12]

In contrast, modern right-wing populists are highly religious. According to a 2011 Pew Research Center analysis, for example, Tea Party members were “much more likely than registered voters as a whole to say that their religion is the most important factor in determining their opinions on … social issues.”[13]Likewise, a subsequent Pew analysis found that “white born-again or evangelical Christians and white Catholics … strongly supported Donald Trump ….”[14]

Today’s elites thus hold non-elites in at least as much disdain as did the elites of Lasch’s period. The Clerisy, in particular, scarcely bothers to conceal its disdain for the traditional middle and working classes.[15]This disdain manifests itself in a variety of ways, perhaps most notably through the increasing separation between the working class and the elites.

The increasing geographical separation between the elites, on the one hand, and the working class, on the other, with the former migrating to the coasts and large cities and the latter remaining in rural areas, has been widely remarked.[16]Even when they live in relative geographical proximity, however, the elites are increasingly walling themselves off from non-elites. As Joel Kotkin observed, for example, “large sections of the [San Francisco] Bay Area … resemble a ‘gated’ community, where those without the proper academic credentials, and without access to venture funding are forced into a kind of marginal nether-existence.”[17]

Ditto Portland (or, more precisely, Beaverton). The bottom line is that the values, beliefs, and tastes of social justice warrior CEOs like Phil Knight have radically diverged from those of red state populists. In many cases, it simply would not occur to SJWs like Knight that there are folks who would take offense from the Kaepernick ad. And, if it did, Knight and his ilk simply won't care.

03/07/2018

Would Yale really turn away a brilliant young flutist, chemist or poet who, while solidly educated in history, religion and government, is not specifically “versed in issues of social justice”? What about students who have pursued courses based on great works of the past? Must they be versed in contemporary views of social justice too? Besides, which causes constitute social justice?

01/22/2018

In a bare bones ruling, with option purportedly to follow, the Pennsylvania Supreme Court on a party line 5-2 vote struck down Pennsylvania's Congressional district map as unconstitutional under the state constitution. The Democrat judges presumably based their ruling on the state constitution so that it will survive the US Supreme Court gerrymandering opinions coming later this year.

Despite its pronouncement that the 2011 map clearly, plainly, and palpably violates the Pennsylvania Constitution, the Court fails to identify the specific provision it so violates. This vagueness by the Court is problematic because the parties raise several state constitutional claims, including the Speech Clause, the Free Association Clause, the Elections Clause, and the Equal Protection Clause, each of which has a different mode of analysis. ... The Court’s order fails to give essential guidance to the General Assembly and the Governor, or this Court on how to create a constitutional, non-gerrymandered map.

One wonders how any such guidance can be provided. How does one go about measuring the permissible degree of partisan gerrymandering? What metrics will be used to decide what is and is not permissible?

My prediction is that the effort to restrict partisan gerrymandering will never produce a coherent test. Instead, if the judges are semi-honest they will paraphrase Justice Potter Stewart's famous standard on obscenity:

"I shall not today attempt further to define the kinds of [Conressional district maps] I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the [map] involved in this case is not that."

Of course, if judges were really honest, they'd admit they were acting as a super-legislature--in this as so many other areas--by drawing lines that benefit their political party. Of course, no judge will ever be so honest, but I nevertheless feel safe in positing that this will not be the last time a court splits on party lines in gerrymandering cases.

10/31/2017

Like a B-movie franchise villain who keeps coming back, 18 U.S.C. § 1001 -- the prosecutor's best friend -- has once again reared its ugly head. If it is true that a prosecutor can get a grand jury to indict a ham sandwich, it seems to also be true that a prosecutor can get a ham sandwich to violate 18 U.S.C. § 1001.

The statute provides that:

(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully—

(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;

(2) makes any materially false, fictitious, or fraudulent statement or representation; or

(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;

shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both. If the matter relates to an offense under chapter 109A, 109B, 110, or 117, or section 1591, then the term of imprisonment imposed under this section shall be not more than 8 years.

George Papadopoulos, a former Trump campaign policy adviser, pleaded guilty to making material false statements and omissions in an interview with FBI agents, in violation of 18 U.S.C. § 1001.

According to documents released on Oct. 30, 2017, in an interview conducted as part of Special Counsel Robert Mueller’s investigation into Russian election interference, Papadopoulos misrepresented the timing of conversations with an individual known to be substantially connected to Russian government officials, his knowledge of the individual’s Russian connections and the nature of his interactions with a female Russian national. ...

In a plea agreement filed on Oct. 5, 2017, Papadopoulos pleaded guilty to violating 18 U.S.C. § 1001(a)(2) by making materially false, fictitious or fraudulent statements to the FBI. 18 U.S.C. § 1001 carries a maximum sentence of five years’ imprisonment, a $250,000 fine and three years of supervised release. Since he has accepted responsibility and has no criminal history, the government recommended between zero to six months’ imprisonment and a fine between $500 and $9,500.

I last had occasion to ponder § 1001 back during the Martha Stewart insider trading case. Back then I wrote:

According to published reports, the U.S. Attorney decided going after Stewart would be an “unprecedented” expansion of insider trading law. Instead, the Feds indicted her, inter alia, over her denials that she committed insider trading. At worst, however, Martha lied about doing something that isn't illegal. I still don't get why that should be criminal. ...

Tung Yin of the Yin Blog has a very interesting post providing a good deal of detail on the legal merits of the obstruction of justice charge. I don't dispute his assessment that what Martha did could be criminal (in a hyper-technical sense, IMHO), but I still don't get why it is criminal as a matter of sound public policy or, especially, why as a prudential matter a prosectutor should have brought Count 9. I agree entirely with the first reader's assessment that it is unfair to let the government fling allegations, which they end up deciding not to charge somebody with, and then let the government prosecute that person for having denied the allegations the government decided it couldn't prove. Why isn't that just whacked?

Turning to the obstruction counts, however, I'm also skeptical of them as a prudential matter. It also seems to me that aggressive prosecutorial use of 18 U.S.C. sec. 1001 undercuts the requirement that the government prove guilt beyond a reasonable doubt. Granted the 5th amendment only gives you a right to remain silent, but shouldn't you be allowed to tell the cops "I didn't do it" without getting hauled up on charges later -- especially if they end up deciding not to charge you with the underlying crime? I mean, I can't tell you the number of times I've told a cop I didn't see the stop sign. [Ed: After reading Prof. Yin's helpful follow-up post, I added the underlined sentence for further clarification.]

I should note that Prof. Yin, to say the least, seems receptive to the prudential component of my argument:

Now, all that's left is to wonder, should the alleged lie in the actual case with the actual circumstances be a crime? And if so, is it really worth prosecuting? That's a totally different question, and certainly I can see arguments to be made that Stewart's alleged false statement really isn't worth the government's attention and time -- but for her celebrity status.

Exactly, if the defendant wasn't Martha Stewart (and if we hadn't already had Enron and so on), this case never happens. My friend Tom Smith makes this point quite pithily:

Steve Bainbridge is right on about Martha Stewart. He is perhaps too polite to add, however, that the ill-defined insider trading laws are perfect tools for ambitious prosecutors who want to go on scalp-hunting expeditions. Is Martha the most egregious insider trader in Manhattan these days? Hardly. But she is a high profile celeb with a reportedly obnoxious personality that the press would love to see fall. The Bonfire of the Vanities with the feds roasting their marshmellows on the flames.

Harsh, but true.

As with Stewart, the government -- or, to be more precise, an essentially unaccountable special prosecutor with ties to potential targets of the investigation (James Comes and the FBI) and a staff full of partisans many of whom finance and presumably vote for Democrats, including Hillary Clinton -- decided not to charge Papadopoulos with a criminal offense. Instead, they got him on obstruction.

Which brings me back to something I also wrote about the Stewart case:

Eric Rasmusen makes a good point about the Stewart conviction's likely effect on future government investigations:

My advice is to refuse to cooperate with any federal investigation, however peripheral and safe you might seem and even if you are sure no crime has been committed. Make them come back with a subpoena and make sure you have your lawyer on hand, and so forth.

This points to a law-and-economics reason for repealing the [false statements] law: the law's effect is to hinder investigations. The police should want to encourage people to talk to them, not discourage them. In fact, ordinarily I bet it is more useful to the police to have someone tell them lies than to have the person keep quiet. Police are expert in sifting through lies and half-truths, but nobody can extract information from silence motivated by fear that talking will get the speaker in trouble regardless of whether he committed any other crimes.

My friend and colleague Eugene Volokh uses Rasmusen's post as a jumping off point for these observations:

Cases such as Martha Stewart's may discourage people (even innocent people) from talking to federal authorities at all, because they might fear that some error on their part may be characterized as a lie, and might thus mean criminal punishment. In some cases (though not in all), the person may conclude that the better course is just to say nothing. That may already often happen to witnesses who are themselves being investigated for a crime, since they are often advised to say nothing in any event. But 18 USC sec. 1001 risks also discouraging cooperation by people who are just seen as witnesses.

It's hard to tell just how serious a problem this might be, and 18 USC sec. 1001 does indeed have potentially beneficial effects, too, since it may often encourage witnesses to tell the truth. But it's worth recognizing that the law can also encourage witnesses to say as little as possible, an "anticooperative effect" that might undermine the law's beneficial effect. I discuss this general problem in my Duties to Rescue and the Anticooperative Effects of Law - but as Rasmusen and Frissell point out, the problem extends far beyond just duties to rescue.

Maybe there's some rough justice in putting Miss Stewart in an orange jumpsuit for fibbing about the circumstances of that sale with her broker. Manifestly the jury thought so. But in a case ostensibly brought on behalf of sticking up for the forgotten "little guy," we'd like to think prosecutors might have weighed the price paid by the truly innocent here: all the Martha Stewart Living shareholders, employees, executives, and so forth whose livelihoods have suffered tremendously since this case first broke into the headlines and whose futures, like their company, are now in limbo. And it's not just Miss Stewart's company: Kmart, a big buyer of Martha's products, is going to take a hit too.

We also have doubts about what "message" this conviction really does send about lying. In hindsight we can now see that had Miss Stewart said absolutely nothing at all when investigators came calling, she would not be facing jail time today. Our guess is that the corporate defense lawyers are a more reliable guide about the message of this prosecution, and right now they're pretty much all agreed that the real lesson here is to zip up completely when the FBI starts calling. Hard to see how this is a big victory for transparency.

Finally, we come to a point we've stressed before: the absence of an underlying crime. Most of the charges against Miss Stewart were brought under Title 18, Section 1001 of the U.S. Code, which makes it a crime to lie to investigators. The dangers for overreach here should be obvious, and comments made back in 1996 by Supreme Court Justice Ruth Bader Ginsburg and recently unearthed by the New York Sun now look prophetic.

"The prospect remains that an overzealous prosecutor or investigator - aware that a person has committed some suspicious acts, but unable to make a criminal case - will create a crime by surprising the subject, asking about those acts, and receiving a false denial," Justice Ginsburg wrote in a concurring opinion in Brogan v. United States, warning against the "sweeping generality" of Section 1001's language.

In short, in the Schadenfreude afterglow of Martha Stewart's conviction we also see before us the innocent people who will pay the highest price for that prosecution, as well as a huge new incentive for CEOs to clam up next time the feds ask questions.

When state Insurance Commissioner Jim Brown was convicted of lying to FBI agents, I wrote that henceforth Louisiana politicos would do well to think of Brown before agreeing to talk to the feds -- and then invoke "the Jim Brown Rule."

The Jim Brown Rule is very simple: if you're a public figure in Louisiana, do not talk to the FBI.

I certainly don't advocate obstructing federal investigations, but the plain truth is that FBI agents have no legal duty to tell people the truth. On the other hand, if you're being interviewed by the FBI, you have a legal duty to tell them the truth. As Brown found out the hard way, you can go to jail if you don't.

I'm sorry, but I still find that grossly unfair and tyrannical. If this is the way Mueller starts his campaign, it does not bode well for the fairness of the outcome.

03/03/2017

I really like this new paper by Steven Davidoff Solomon and David Zaring:

The Trump administration has promised to pursue policy through deals with the private sector, not as an extraordinary response to extraordinary events, but as part and parcel of the ordinary work of government. Jobs would be onshored through a series of deals with employers. Infrastructure would be built through joint ventures where the government would fund but private parties would own and operate public assets.

We evaluate how this dealmaking state would work as a matter of law. Deals were the principal government response to the financial crisis, partly because they offered a just barely legal way around constitutional and administrative barriers to executive action. Moreover, unilateral presidential dealmaking epitomizes the presidentialism celebrated by Justice Elena Kagan, among others. But because it risks dispensing with process, and empowers the executive, we identify ways that it can be controlled through principles of transparency, rules of statutory interpretation, and policymaking best practices such as delay and equivalent treatment of similarly situated private parties.

Davidoff Solomon, Steven and Zaring, David T., The Dealmaking State: Executive Power in the Trump Administration (February 21, 2017). Available at SSRN: https://ssrn.com/abstract=2921407

02/18/2017

I am saddened to learn that Michael Novak has passed away. The American Enterprise Institute, where he was a resident scholar for many years, reports that:

Michael was an AEI scholar for three decades until his retirement in 2010, and remained a close friend of the Institute.

Michael arrived at AEI in 1978. ... And once here, he built a hugely distinguished career as our George Frederick Jewett Scholar in Religion, Philosophy, and Public Policy.

The Spirit of Democratic Capitalism (1982), likely Michael’s most important book, advanced a bold and important thesis: America’s system of democratic capitalism represents a fusion of our political, economic, and moral-cultural systems. No facet can exist apart from the others. This thread ran through Michael’s whole career, including his most recent book, a co-authored work entitled Social JusticeIsn’t What You Think It Is (2015).

Michael Novak loved the Catholic Church and the United States passionately. And with his death at 83, both Church and nation have lost one of their most imaginative and accomplished sons: a groundbreaking theorist in philosophy, social ethics, religious studies, ethnic studies, and economics; a brilliant teacher; a winsome journalist and apologist; a great defender of freedom, as both ambassador and polemicist; a man of striking energy and creativity, some of whose books will be read for a very long time to come, and in multiple languages.

Over a long life Michael Novak traveled from writing speeches for George McGovern to serving as Ronald Reagan’s ambassador to the U.N. Commission on Human Rights, reflecting an intellectual journey from socialism to capitalism. He died Friday at age 83, but in many ways he remained the boy forged in Johnstown, Pennsylvania: a working-class town of steel mills, coal mines and immigrant Slovak families trying to find their way in this new land called America.

Raised as a Roman Catholic, Novak believed as a young man that socialism was the ideal economic arrangement. But he began to notice a flaw: While socialism sounded good in theory, in practice it didn’t work—and non-elites fared the worst.

Capitalism had little high-minded theory, but in practice it literally provided the goods. If ordinary folks did so much better under capitalism, maybe the caricatures—e.g., that it is all based on greed—were wrong. Maybe free markets had their own virtues and were defensible, and even superior to other economic systems on moral grounds.

From this recognition sprang his most important work, “The Spirit of Democratic Capitalism,” which changed America’s public debate when it was published in 1982. “Democratic capitalism,” he wrote, is “neither the Kingdom of God nor without sin. Yet all other known systems of political economy are worse. Such hope as we have for alleviating poverty and for removing oppressive tyranny—perhaps our last, best hope—lies in this much despised system.”

I only had the privilege of meeting Novak on one occasion, but he had a huge impact on my life. It was reading his work on Catholic social thought as it relates to the corporation that provided the normative foundation for my own work but also provided the impetus and interest in Catholicism that eventually led to my conversion. Indeed, if one had to single out one person who pushed me across the Tiber, it was Novak.

02/13/2017

Dolan is unquestionably what most people would regard as a “conservative.” His closest friends and advisers are conservatives, he’s by-the-book when it comes to faith and morals, and he’s unabashedly proud of being a “John Paul II bishop.”

In other words, Dolan has strong personal views which some would see as fairly partisan.

However, another defining quality of Dolan is a relentless determination to keep lines of communication open, never to demonize or alienate anyone, and to demonstrate that one can have strong convictions without forever going to war against people who don’t share them. ...

Dolan suggests another America, one in which people who disagree can still be friends, still talk to one another, still recognize one another’s fundamental decency, and where disputes don’t have to end in shoving matches and handcuffs.

02/12/2017

A friend on FB posted an interesting hypo. My version: ‪Gun to your head; forced to choose: would you prefer to be ruled by a rich man who uses his wealth to gain great power or a politician who uses his power to gain great wealth?‬ No fighting the hypo. Crassus or Caesar, I suppose would be an historical example.

12/21/2016

Wall Street maven Carl Icahn will advise President-elect Trump on matters of regulatory reform, giving the famed investor a key say in how his own industry is monitored.

Icahn will advise Trump on regulatory topics as an individual, not as a federal employee and won't have any specific duties, according to a release from the Trump transition team. But it's clear Icahn and Trump agree on what needs to be done - reduce rules.

“Under President Obama, America’s business owners have been crippled by over $1 trillion in new regulations and over 750 billion hours dealing with paperwork," Icahn said in a statement released by the Trump transition team. "It’s time to break free of excessive regulation and let our entrepreneurs do what they do best: create jobs and support communities."

Icahn could play a role in naming the successor to Mary Jo White as the Chair of the Securities and Exchange Commission. White has announced plans to step down from the post in January 2017.

Well that would put paid to my dwindling hopes of being the next SEC Chairman. As regular readers know, here at PB.com, while we share Icahn's newfound enthusiasm for deregulation, we are not a fan of the man himself:

David Benoit reports that Carl Icahn has had a good run this year: Carl Icahn, long seen as the archenemy of chief executives, is finding the path to the boardroom easier to tread. Mr. Icahn, among the most relentless of activists, se...

Deal Journal:The rejection by Lear Corp. shareholders of [Carl] Icahn’s $2.9 billion merger offer is an extremely rare occurrence. It’s only the eighth U.S. deal that shareholders have nixed in a vote since 2003, according to FactSet Mer...

Carl Icahn got rich out of ruining companies by extorting greenmail from spineless targets and running companies like TWA into the ground. But these days he's trying to remake himself into some sort of good corporate governance, aided an...

The latest edition of The Economist is once again beating the drums for shareholder activism. (As I've said before, I love them despite their ineducability on this issue): Martin Lipton, a lawyer who has long helped protect incumbent ...

Hrishikesh D. Vinod, Aligning National Interest with Trump's Business Interests: A Fair Solution to Potential Conflicts of Interest (November 29, 2016). Available at SSRN: https://ssrn.com/abstract=2877494:

Certain lawyers are asking the president-elect Trump and family to sell all his assets including vast world-wide real estate at fire-sale prices and place the proceeds in a blind trust or US Treasury bonds. This will be very disruptive, unfair and may discourage future global entrepreneurs from seeking US presidency. This article offers a fair solution which does not require any sale of assets using some insights from economic theory and Foreign Gifts and Decorations Act of 1966. Aligning the interest of the American people with that Trump family can be accomplished by requiring the Trump family to forfeit all ‘excess’ gain in their net worth to the US treasury. Accountants at the IRS should be able to estimate what the Trumps might have earned, had Mr. Trump not been the president and hence estimate the excess, if any, at the end of his term.

Which in turn suggests that the fuss about Hillary Clinton's private mail server was well founded.

This also would not be a story if the DNC and Podesta emails had not had juicy details that held them up for justified criticism and ridicule. Using Bernie Sanders religion against him. DNC Chair Wasserman Schultz collaborating with Clinton against Sanders. Clinton lawyers collaborating with DNC against Sanders. Flippant remarks about donors. Collusion with media sympathizers. DNC efforts to hurt Tim Canova's primary campaign against Wasserman Schultz. Pages from those Wall Street speeches Hillary refused to release. Podesta communicating with liberal Catholics and -non-Catholics about changing Church teaching and criticizing conservative Catholics. Debate questions leaked by Donna Brazile to Clinton.

In sum, there is very little new news here. Which makes the timing of these news stories trumping up the facts (pun intended) quite suspicious. Admittedly, I dote on conspiracy theories, but it strikes me as entirely plausible--based in no small part on those DNC emails--that there is a campaign organized by Clinton die-hards and their media sympathizers to weaken and delegitimate PEOTUS Trump before he even takes office.